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UPDATE: Is the GOP Senate about to save Obamacare from the GOP House?

Tue, 02/16/2016 - 10:30am

Unintended Consequences: In the social sciences, unintended consequences are outcomes that are not the ones foreseen and intended by a purposeful action. The term was popularised in the twentieth century by American sociologist Robert K. Merton.

When United States Supreme Court Justice Antonin Scalia passed away Saturday evening, the reaction from Republican Senators and right-wing political pundits was instant and consistent: President Obama shouldn't be allowed to nominate anyone to replace him (even though that's precisely and specifically one of the responsibilities of the current President of the United States is supposed to do), and if he does so, the U.S. Senate will refuse to even allow the nominee a hearing, much less confirm them.

Now, trying to claim that a sitting U.S. President shouldn't even be allowed to nominate someone, when that President still has 11 months left in office, is utter nonsense. Voting against the confirmation of a judicial nominee regardless of how well-qualified they are, on the other hand, may be rude, but yes, that's absolutely the prerogative of each individual Senator.

When the court has a full complement of nine justices and everyone votes, there are no ties. But when a justice is recused or otherwise not voting, the court needs a rule to decide what happens to a case in the event of a deadlock. The rule is that a tie vote affirms the decision below, but without setting a precedent for the future. That means that who won in the lower courts matters a great deal. This year, left-leaning decisions in the lower courts are almost sure to survive review in a Supreme Court without Scalia.

However, here's where things get interesting: As ACA Signups follower Richard Simpkins has noted, the House v. Burwell case was filed in November 2014 in the U.S. District Court for the District of Columbia (which makes sense, since it was the U.S. House of Representatives who brought the case, after all...what other district would they file it in?).

Collyer may be a Bush appointee, but take a look at the full DC District Court: There are 22 judges (1 seat is currently vacant)...and of those, 16 were appointed by Democratic Presidents. In fact, 9 of them were appointed by President Obama himself (Presidents Clinton and Carter appointed the other 7). The other 6 were appointed by either GW Bush or Ronald Reagan.

Of course, there's no guarantee that every one of these judges will vote favorably to the party of the President they were appointed by, but overall the odds here are certainly far more favorable to the Obama administration than the House GOP. If the full DC Circuit Court were to rule in favor of the Treasury Dept. continuing to pay out Cost Sharing Reduction assistance to those who qualify, and the case were to then be bumped up to the SCOTUS level, a 4-4 deadlock in the Supreme Court would result in the DC Circuit ruling standing. That's right: Mitch McConnell and his fellow Republican Senators would, in this scenario, be directly responsible for saving a large part of the Affordable Care Act which they've been desperately trying to repeal for nearly six years now. Better yet: They'd have done so by throwing a monkey wrench into a lawsuit brought by their own House colleagues​.

But wait, you say: Wouldn't the ruling stand if the Senate did confirm Obama's SCOTUS appointee? After all, whoever he appoints would be very likely to side with his administration anyway.

Well, perhaps...but perhaps not. If every single judge at both the Circuit and SCOTUS levels were to rule purely on the merits of the case itself, the case could go either way.

Again, however, I'm just talking about playing the odds here: If some of them vote based on the partisan ideology that everyone's assuming they side with, then the odds are still far more favorable to the Obama administration at the Circuit level (16:6) than they would be at the SCOTUS level, regardless of whether Obama's appointee goes through or not. In this scenario, the Senate Republicans would actually be better off gambling on Obama's shiny new appointee shocking everyone by siding with the GOP (rightly or wrongly) than they are with a 4:4 deadlock.

I previously wrote that cases in which the Supreme Court is divided four to four after Justice Scalia’s death would be “affirmed by an equally divided Court.” I now believe that is wrong. There is historical precedent for this circumstance that points to the Court ordering the cases reargued once a new Justice is confirmed.

Whether that precedent will be followed is not perfectly clear, because it is uncertain when a new Justice will replace Justice Scalia. It could be as long as a year from now – well into the Court’s next Term. But it is also possible there will be a new Justice when the Court returns from its upcoming summer recess. Because the Court follows tradition when possible, I think the most likely outcome by far is that the Court will order the affected cases reargued next Term.

The most on-point precedent involves Justice Robert Jackson, who died suddenly of a heart attack at the very beginning of the Court’s 1954 Term (on October 9, 1954). Jackson’s replacement, John Marshall Harlan II, was confirmed later that Term (on March 17, 1955). So for cases argued in the 1954 Term before March 17, there is a direct parallel to the present circumstances. The Court had only eight Justices, due to the death of a member of the Court.

...There is one counter-example from the same Term: Ryan Stevedoring v. Pan-Atlantic S.S. Corp. It was argued just before Harlan joined the Court (on March 3-4, 1955) and then was affirmed by an equally divided Court after he joined (on April 11, 1955). It was not set down for reargument.

I do not have access to the papers in the cases, so I cannot explain why they were treated differently. But Ryan Stevedoring looks to be an outlier. It could be the Justices decided that the case, which involved indemnity under admiralty law, simply was not worth the time to reargue.

Well, that's clear as mud. It now sounds to me as though the 8 living SCOTUS Justices can handle cases like this pretty much however the hell they want to...in which case I'd imagine that Chief Justice Roberts gets the final call about what to do with them.